96 Ky. 563 | Ky. Ct. App. | 1895
delivered the opihion oe the court.
This is an appeal from the judgment of Jefferson Circuit Court, of date 25tli January, 1895, adjudging that a certain election held in the city of Morganfield, on the SOfch day of April, 1894, whereby it was determined and authority given to incur an indebtedness on behalf of the city of Morganfield of twenty thousand dollars, for the purpose of constructing water
It appears by the pleadings and exhibits filed herein, that this election was held by the authority and direction of the mayor and city council of the city of Morganfield, and in pursuance of that clause in the Constitution of Kentucky which authorizes a vote to be taken, when, in the opinion of the mayor and council of cities of the fifth class, it is deemed right and proper so to do, to obtain authority to contract an indebtedness beyond the annual revenues of cities within the class of the city of Morganfield, which was and is the fifth class, and of the several provisions of the charters in the Statutes of Kentucky for cities of this class.
All the preliminary steps necessary to this election had been regularly taken, as provided by section 3637 of the Kentucky Statutes, and particularly pointed out by the third subsection thereof, such as notice of said election, specifying the amount of indebtedness proposed to be incurred, the purposes of same, and the amount of money necessary to be raised annually, by taxation, for an interest and sinking fund, as therein provided, said notice being duly published in a newspaper of general circulation in the city of Morganfield. And further, under the seventh subsection of section
All the constitutional requirements were strictly observed in said election, as that it was held by secret official ballot; that more than two-thirds of all the legal voters in said city voted in favor of incurring the indebtedness, and that the amount of indebtedness voted did not exceed three per centum of the assessed value of the property in said city as duly found and shown by the appraisment designated by law for that purpose. So that, no objection is made by the appellee in his answer or brief to any of these things. One thing of which he complains is, that the election was not held by the proper officers, being those appointed by the city council for that purpose, but contending that this election should have been held by the officers appointed by the county court
We do not so understand the law. While it is true that both the Constitution and the Kentucky Statutes declare this taking the sense of the qualified voters on any subject submitted to the people was an election within the meaning of that term, as used in section 147 of the Constitution, and in section 1437 of the statutes, under title of “ Elections,” yet the Constitution further notices a distinction between the elections provided for the selection of the several officers of the cities of the several classes, and those elections provided to ascertain the sense of the people on any given proposition. Section 148 provides that all elections of State, county, city, town or district officers shall be held on the first Tuesday after the first Mon-day in November under the provisions of the election laws. And section 157, under title Municipalities, wherein the limitation of indebtedness and taxation ■occurs, and being the subject now under consideration, provides that the sense of the people shall be taken at an election held for that purpose. And then the act of incorporation or charter for cities of the fifth class provides that, when it is deemed desirable by the city council they may give notice and hold an election for that purpose, which they have done in this case. And also that they may make all needful rules and do such things as may be necessary to carry out and perfect all the provisions of their charter, including necessarily the appointment of officers to conduct the election. While section 3658, being part of the same charter for ■cities of the fifth class, says that all municipal elec
Should, however, the court be wrong in this construction, yet the validity of the election may be clearly maintained on other grounds. As that the directions of the statutes in reference to the particular officers who shall hold an election are but directory; that it pertains but to the manner and form of same, and does not go to the essence thereof; that in this case all the essential elements provided by the Constitution were strictly observed; that the sense of the legal voters of the city on the question submitted was taken fairly without fraud; that it was taken by secret official ballot; that on said election largely over two-thirds of the voters voted in favor of creating said indebtedness, and that the indebtedness voted was within the constitutional limitation of three per centum of the taxable property for cities of this class. That in this election no legal voter had ‘been deprived of the right to vote, nor had any illegal vote been received. Neither was the result of said election rendered doubtful or uncertain by reason of the officers who acted. That both the city council and the people believed this to be a lawful election, and both have acquiesced in the result of same; that acting under this authority, the city council did contract for and have constructed a system of waterworks for said city, same being now completed and turned over or ready to be turned over to the city.
The issuance of the bonds of said city in payment of said indebtedness was but an incident of same, some form of evidence of such indebtedness being necessary, showing to the respective creditors the amounts severally due them, when due and when payable, by whom and the annual rate of interest of same until maturity. All this is most conveniently and properly done by the execution of the bonds of said city, with interest coupons attached, all being duly attested by the proper authority, to bind said city. We see no objection to the bonds as tendered appellee.
For the reasons indicated, it appears to us that the judgment of the Jefferson Circuit Court adjudging said election of April 30, 1894, a legal election; that under and by it the city of Morganfield was authorized to
Wherefore, said judgment is affirmed.